Reduction of interpreters and translators fees from 7,34 euros / hour to 4,07 euros/ hour form the 3rd hour on is constitutionally illegitimate.
This absolute disproportion ends up being manifestly unreasonable with respect to the legitimate aim of containing the costs of the process, as it neglects the primary requirement for a service of adequate quality with respect to the importance of the munus publicum conferred.
ITALIAN CONSTITUTIONAL COURT
JUDGMENT NO. 16
YEAR 2025
Hearing 10/12/2024; Decision of 11/12/2024; Filing of 10/02/2025
composed of: President: Giovanni AMOROSO; Judges: Francesco VIGANÒ, Luca ANTONINI, Stefano PETITTI, Angelo BUSCEMA, Emanuela NAVARRETTA, Maria Rosaria SAN GIORGIO, Filippo PATRONI GRIFFI, Marco D'ALBERTI, Giovanni PITRUZZELLA, Antonella SCIARRONE ALIBRANDI,
has pronounced the following
JUDGMENT
in the judgement of constitutional legitimacy of art. 4, second paragraph, of law no. 319 of 8 July 1980 (Compensation due to experts, technical consultants, interpreters and translators for operations carried out at the request of the judicial authority) and of art. 50, paragraph 3, of the decree of the President of the Republic 30 May 2002, n. 115, containing ‘Consolidated text of the legislative and regulatory provisions regarding legal expenses. (Text A)’, promoted by the Ordinary Court of Florence, first criminal section, in monocratic composition, on the request proposed by I. S., by order dated 5 April 2024, registered under no. 100 of the 2024 register of orders and published in the Official Gazette of the Republic no. 23, first special series, of the year 2024, the discussion of which was set for the meeting in chambers on 10 December 2024.
Hearing held in chambers on 11 December 2024 by Judge Rapporteur Maria Rosaria San Giorgio;
deliberated in chambers on 11 December 2024.
Findings of fact
1.– By order dated 5 April 2024, registered under no. 100 of the register of ordinances of 2024, the Ordinary Court of Florence, first criminal division, in monocratic composition, raised, with reference to articles 3 and 111 of the Constitution, questions of constitutional legitimacy of article 4, second paragraph, of law no. 319 of 8 July 1980 319 (Compensation due to experts, technical consultants, interpreters and translators for operations carried out at the request of the judicial authority), ‘in the part in which - for sessions subsequent to the first - it provides for a lower fee than that provided for the first session, even in the case of the application of inadequate tariff provisions pursuant to art. 54 of Presidential Decree No. 115 of 2002’, and art. 50, paragraph 3, of the Presidential Decree No. 115 of 30 May 2002, containing ’Consolidated text of legislative and regulatory provisions regarding legal expenses. (Text A)’, “insofar as it provides that the tables relating to time-based fees should indicate the hourly rate, possibly distinguishing between the first and subsequent hours, even in the case of the application of tariff provisions that are not adequate pursuant to art. 54 of Presidential Decree no. 115 of 2002”.
The judge a quo reports that he has to decide on the request for payment of fees submitted by I. S., an Arabic interpreter who, registered in the relevant section of the register of experts of the Court of Florence, had provided his services during the hearing to validate the arrest of E.A. E.H. (which took place during the night between 26 and 27 December 2023), for which it was necessary to appoint an auxiliary.
2.– In terms of relevance, the referring judge emphasises that the interpreter was present in the courtroom from 9:00 a.m. on 27 December, as attested by the clerk of the court, and that it should in any case be considered, based on the operational practice of the judicial office and the judicial police, that he had been summoned to appear at that time. The prosecutor's summons – continues the judge a quo – stated 12:40 as the time and the hearing minutes stated that the proceedings against E.A. E.H. had only been heard at 16:04 and the hearing ended at 18:10 with the validation of the arrest, followed by a postponement to another hearing for the celebration of the summary judgement.
The waiting for the trial to be called, the duration of the validation hearing and the time necessary for the subsequent formalities (the tasks assigned to the extraction and delivery of copies of the order and the final interlocutions between the defence counsel and the client) would have required, according to the referring judge, to recognise to the auxiliary, in consideration of a task carried out in the presence of the judicial authority, and for which the limit of four working hours per day does not therefore apply, a fee, commensurate with the time spent, equal to five working hours, the payment of which would amount, under the censured legislation, to €47.28 (€14.68 for the first working hour and €8.15 for the subsequent ones), an amount likely ’ to be doubled [...] due to the urgency’, pursuant to art. 4, third paragraph, of law no. 319 of 1980; or, if only the time span between 12:40 and 18:10 is considered, to €30.98.
In the Court's view, this legislation is not such as to guarantee adequate compensation for the interpreter's work.
The referring court recalls that, although the amounts provided for the payment of holiday allowances were subsequently adjusted by secondary sources ‘pursuant to art. 10 of law 319/1980 (and then of art. 2 of law 13/1991)», the censured provisions are characterised by «a (significant) difference» between the amount relative to the first holiday and the subsequent ones.
The alignment of the latter to the higher value would determine, in the specific case, the payment of an amount equal to 73.40 euros, without prejudice to the possibility of doubling it due to the urgency, suitable for bringing the measure of the compensation to a fairer level.
Hence the need to refer the matter to this Court, as the final amount of the settlement due to I. S. for the professional service provided depends on its decision.
3.– Moving on to illustrate the non-manifest unfoundedness of the questions raised, the referring court starts from the content of both art. 4, second paragraph, of law no. 319 of 1980, in the part in which, for subsequent assignments, it provides for a lower fee than that contemplated for the first assignment, and art. 50, paragraph 3, of the d.P.R. n. 115 of 2002, where it establishes that the tables relating to time-based fees should indicate the hourly rate, possibly distinguishing between the first and subsequent hours.
3.1.– The judge a quo observes that art. 4, second paragraph, of law no. 319 of 1980 establishes, for all relevant purposes, that time-based fees are determined on the basis of two-hour time slots, with different rates for the first and subsequent hours.
The amounts initially contemplated – 10,000 lire for the first vacation and 5,000 lire for the additional ones – were subsequently remodelled, pursuant to art. 10 of the same law n. 319 of 1980 (later repealed by art. 299, paragraph 1, of the d.P.R. n. 115 of 2002), by the d.P.R. 30 March 1984, n. 103 (Adjustment of fees commensurate with time, due to experts, technical consultants, interpreters and translators, for operations carried out at the request of the judicial authority in criminal and civil matters), of the d.P.R. 27 July 1988, n. 352 (Adjustment of fees due to experts, technical consultants, interpreters and translators for operations carried out by order of the judicial authority in civil and criminal matters), repealed by art. 301, paragraph 1, of Presidential Decree n. 115 of 2002, as well as, following law no. 13 of 12 January 1991 (Determination of administrative acts to be adopted in the form of a decree of the President of the Republic), which had reallocated competence in the matter, by the decree of the Minister of Grace and Justice in concert with the Minister of the Treasury, 5 December 1997 (Adjustment of the measure of fees due to experts, technical consultants, interpreters and translators), and, finally, the decree of the Minister of Justice, in concert with the Minister of Economy and Finance, 30 May 2002 (Adjustment of the fees due to experts, technical consultants, interpreters and translators for operations carried out by order of the judicial authority in civil and criminal matters).
As a result of this last regulatory intervention, in particular, with art. 1, paragraph 1, the fee for the first session has been raised to 14.68 euros and for subsequent sessions to 8.15 euros, amounts currently in force.
Pursuant to the third paragraph of art. 4 of law no. 319 of 1980, the fee for the vacation can be doubled when a deadline not exceeding five days is set for the completion of the operations, and can be increased by up to half when a deadline not exceeding fifteen days is set.
The following paragraphs of the same art. 4 dictate supplementary criteria on the calculation of unfinished working hours and on the maximum number of daily working hours.
3.2. – The regulation of fees due to experts, technical consultants, interpreters and translators for operations carried out at the request of the judicial authority – continues the referring judge – was then merged into Presidential Decree no. 115 of 2002, containing the new organic regulation of legal expenses.
Article 50 of this Consolidated Act classifies the fees of the magistrate's auxiliaries as fixed, variable and time-based, to the extent established ’ by means of tables, approved by decree of the Minister of Justice, in agreement with the Minister of Economy and Finance, pursuant to Article 17, paragraphs 3 and 4, of Law 400/1988’, taking into account existing professional tariffs, possibly in similar matters, reconciled with the public nature of the assignment.
The tables relating to time-based fees indicate the hourly rate, possibly distinguishing between the first hour and subsequent hours, as well as the percentage increase for urgency, the maximum number of hours per day and any exceeding of this limit for activities carried out in the presence of the judicial authority.
Despite repealing the rest of the entire law no. 319 of 1980, art. 299, paragraph 1, of the d.P.R. No. 115 of 2002 preserves the validity of art. 4 of law No. 319 of 1980, while the following art. 54 proposes a mechanism for the periodic adjustment of fixed, variable and time-based fees, to be implemented, in relation to the variation, ascertained by the National Institute of Statistics (ISTAT), of the consumer price index for blue and white collar families in the previous three-year period, by executive decree of the Ministry of Justice, in agreement with the Ministry of Economy and Finance.
That said, the judge a quo emphasises that this last mechanism has never been applied, since the last update of the tariffs dates back to the Ministerial Decree of 30 May 2002, again issued in application of Article 10 of Law No. 319 of 1980.
4.– The order of referral recalls how this Court has already criticised, with sentence no. 41 of 1996, the ‘deplorable non-fulfilment’ of the administrative authority's duty to periodically adjust fees, and has subsequently censured the serious disproportion, due to a lack of of the tariff base on which to calculate the measure of the compensation of the judge's assistant, in the case of an accused person admitted to the benefit of legal aid, declaring, with sentence no. 192 of 2015, the constitutional illegitimacy of art. 106-bis of the Presidential Decree No. 115 of 2002, insofar as it does not exclude the reduction of one third of the relative amounts in the case of application of tariff provisions not adequate in accordance with art. 54 of the same Presidential Decree No. 115 of 2002.
For the referring judge, the findings made in sentence no. 192 of 2015 would be ‘even more valid in 2024’, in the face of the persistent inertia of the administrative authority, which has resulted in a measure of fees that is now derisory, with systemic repercussions both in terms of a tendency to distance the judge from the ’ ‘auxiliary circuit’ of the judge of the best professionals, and also in terms of the risk that collaborators will not put in the necessary effort in carrying out the assignment.
The Court of Florence refers to further precedents (judgments no. 166 of 2022 and no. 178 of 2017 are cited) with which this Court, in ruling on the reduction of the fees of the party's consultant in the case of a defendant admitted to legal aid, and on similar reductions in the fees of auxiliaries in civil proceedings, found a violation of the principle of reasonableness, as well as of the right of defence.
5.– These considerations could be replicated with regard to the questions of constitutional legitimacy raised today.
According to the referring judge, ‘an hourly wage of just 4 euros gross’, which is what the provisions of the contested legislation are currently expected to result in, for each shift after the first, a wage lower than that provided for by collective bargaining for ‘much less qualified jobs, is absolutely insufficient to guarantee the necessary quality of service’ and the fairness of the process.
In addition to the prejudice suffered by the professional in charge, whose right to be decently compensated for the work performed is infringed, there would also be prejudice suffered by the administration of justice and by the accused himself, due to the deterioration of the quality of the auxiliary's collaboration and the consequent reduction in the number of people willing to provide it.
Although the stipulation, for the first session, of a higher fee than that envisaged for the subsequent sessions may, in the abstract, be reasonable, the actual values assumed by the fees of the auxiliaries – in their already modest initial amount and in their subsequent and protracted failure to adjust to the cost of living, due to a breach of contract by the administrative authority that has now become a ‘structural feature of the system’ – would be such as to result in the violation of articles 3 and 111 of the Constitution.
6.– In the alternative, the aforementioned regulation is further suspected of constitutional illegitimacy ‘limited to the hypothesis of payment of the interpreter for the interpretation activity carried out in the interest of the foreign-language defendant’, due to contrast with articles 111, third paragraph, and 117 of the Constitution, the latter in relation to articles 2, 4 and 5 of Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings, implemented in domestic law by Legislative Decree No. 32 of 4 March 2014 (Implementation of Directive 2010/64/EU on the right to interpretation and translation in criminal proceedings), and art. 6 of the European Convention on Human Rights, in particular on the right of every accused person to ‘have the free assistance of an interpreter if he cannot understand or speak the language used in court’ (as provided for in paragraph 3, letter e, of the aforementioned article of the Convention).
6.1. – In this regard, the referring judge recalls the case law of the European Court of Human Rights on the effective and concrete nature of the right in question, expressly citing the sentence of 24 January 2019 handed down in the Knox v. Italy case (paragraph 182), which found ‘a violation by the Italian State of art. 6 par. 3 lett. e) of the Convention’ due to the inadequacy of the assistance guaranteed to the accused.
Finally, the judge a quo recalls the existence of numerous European studies on the relationship between the quality of interpretation and the remuneration of the professional, mentioned in the Report of the Commission to the European Parliament and the Council, of 18 December 2018, on the implementation of Directive 2010/64/EU of the European Parliament and of the Council, of 20 October 2010, on the right to interpretation and translation in criminal proceedings.
6.2.– In emphasising, therefore, the close link between the amount of compensation for interpreting services, the actual quality of the service and the fairness of the process, the Court of Florence hopes, in the alternative, that this Court will declare – if necessary, in case of doubt about the interpretation to be given to the aforementioned Directive 2010/64/EU, after a preliminary ruling to the Court of Justice of the European Union, pursuant to art. 267 of the Treaty on the Functioning of the European Union (TFEU) - the constitutional illegitimacy of art. 4, second paragraph, law no. 319 of 1980, and of art. 50, paragraph 3, of the d.P.R. n 115 of 2002, in the parts already indicated, due to conflict with arts. 111, paragraph three, and 117, paragraph one, of the Constitution, the latter in relation to the aforementioned interposed supranational parameters.
7.– Finally, according to the judge a quo, the clarity and unambiguity of the literal data exclude the possibility of a constitutionally compliant interpretation of the legislation in question, which in itself is capable of standardising the amounts by aligning them with the highest initial value, while it would be ‘instrumental’ and ‘illegitimate’ to make use of the provision (currently, art. 52 of Presidential Decree no. 115 of 2002), which allows for an increase in the fee in the case of exceptional importance, complexity and difficulty of the service, for the improper purpose of compensating for the ‘factor of inadequacy linked to the reduction of fees for subsequent holiday periods’.
8.– The President of the Council of Ministers did not intervene in the proceedings.
9.– The Italian Association of Court Interpreters and Translators (Assitig) submitted a written opinion as amicus curiae, pursuant to Article 6 of the Supplementary Rules for Proceedings before the Constitutional Court, on 20 June 2024 and, jointly, Fair Trials Europe, a non-governmental organisation, and the European Criminal Bar Association (ECBA), a group of independent criminal lawyers from the member countries of the Council of Europe, on the following 24th of June.
Both opinions were admitted by presidential decree on 22 October 2024.
9.1.– In particular, Assitig agrees with the findings contained in the referral order, requesting that the raised questions of constitutional legitimacy be accepted.
The amicus curiae highlights the ‘disparity in economic treatment’ between the first and subsequent adjournments, identifying it as a factor capable of prejudicing the necessary linguistic assistance of the accused, which requires adequate remuneration of the interpreter to guarantee the ‘sufficient quality’ of the service, pursuant to art. 5 of Directive 2010/64/EU.
9.2.– Fair Trials Europe and ECBA also make considerations in support of the merits of the criticisms raised by the referring court, after having carried out a detailed reconstruction of the international regulatory framework of reference.
They recall the different rates of interpreters and translators in the various European countries (the systems in Germany, Spain and France, among others, are mentioned) and affirm that the guarantee of adequate remuneration for the indicated categories, based on the particular skills required, integrates the right to a fair trial, in accordance with the obligations provided for by articles 6 ECHR and 47 of the Charter of Fundamental Rights of the European Union, as well as by secondary Union law on procedural matters.
The amici curiae therefore insist that this Court ‘forcefully reaffirm the relevance of the rights in question’, offering a constitutional interpretation of the censured norms, or declaring their constitutional illegitimacy, subject to a preliminary referral to the Court of Justice of the European Union, pursuant to art. 267 TFEU.
Considered in law
1.– The Court of Florence, first criminal division, sitting alone, in reference to articles 3 and 111 of the Constitution, censors article 4, second paragraph, of law n. 319 of 1980, in the part in which, with regard to the determination of the fees due to experts, technical consultants, interpreters and translators for operations carried out at the request of the judicial authority, provides, for holidays subsequent to the first, a lower fee than that established for the first, even in the case of fee schedules that are no longer adequate for the cost of living pursuant to art. 54 of Presidential Decree No. 115 of 2002; as well as art. 50, paragraph 3, of the same Presidential Decree No. 115 of 2002, in the part in which it establishes that the tables relating to time-based fees must indicate the hourly rate, possibly distinguishing between the first and subsequent hours.
In the referring court's view, the clear difference made by the contested legislation between the already largely inadequate remuneration for the first shift and the derisory remuneration set for subsequent shifts would give rise to a manifestly unreasonable regulatory framework, such as to sacrifice the professional's right to adequate remuneration and undermine the guarantee of a fair trial, by not ensuring the minimum quality of the auxiliary's service for this purpose.
1.1.– Alternatively, with specific reference to the payment of interpreters for their work in criminal proceedings against an alloglot defendant, the regulatory framework in question is also suspected of violating Articles 111, paragraph three, and 117 of the Constitution. (recte: art. 117, first paragraph, of the Constitution), the latter in relation to articles 2, 4 and 5 of Directive 2010/64/EU and art. 6 of the ECHR. In fact, the right of the accused who does not understand or speak the language used in the trial to benefit from the services of an interpreter would be violated, the inadequate remuneration of whom would lead to the deterioration of the related activity and would limit the number of professionals aspiring to provide such services, compromising the realisation of that right.
2.– The examination of the questions raised requires, as a preliminary matter, the reconstruction of the evolution of the regulations governing the fees payable to court officers for the activities explained in the process.
2.1. – The original legislative regulation of these fees dates back to Royal Decree No. 2700 of 23 December 1865 (approving the tariff in civil matters) and the contemporary Royal Decree No. 2701 of 23 December 1865 (approving the tariff in criminal matters).
These laws provided, in particular, for the judge's auxiliaries, a distinction in the fee contemplated for each session, equal to two hours, depending on the nature of the service and having regard to the qualifications of the technical consultant, expert and interpreter, with higher fees for graduates and lower fees for those with and without high school diplomas.
Under this regulatory framework, no distinction was made with regard to the size of the first and subsequent payments in terms of the amount of the relative compensation, with the only provision being that subsequent payments should be subject to more detailed scrutiny by the judicial authority.
The subsequent Royal Decree no. 1043 of 3 May 1923 (which establishes the fees due to witnesses, experts, jurors and bailiffs and the allowances due to magistrates and clerks for travel expenses) introduced two important innovations.
On the one hand, it identified a specific fee for certain activities carried out by auxiliaries, a fee therefore linked to the performance of the service considered in itself, and, on the other hand, it introduced a distinction within the scope of art. 13 – which, moreover, is not extended to assistants with a university degree but only to those with a high school diploma and those without a diploma – between the rate for the first payment and that for subsequent payments (setting them at 8 and 4 lire respectively).
The subsequent law no. 1426 of 1 December 1956 (Compensation due to experts, technical consultants, interpreters and translators for operations carried out at the request of the judicial authority), continued to distinguish between fixed and time-based compensation (art. 1), identifying the ‘fixed’ amounts accrued by the auxiliary for predetermined services rendered in the health sector (art. 2), and providing, for other services, that fees should be paid in proportion to the time spent (art. 3).
This legislation also confirmed the duration of each session as two hours, dictating the relative methods of calculation, and identified, as previously, the maximum daily limit of four sessions (except for assignments carried out in the presence of the judge).
For what is most relevant here, law no. 1426 of 1956 also contemplated a distinction in the measurement of fees ‘per hour’ for the first vacation and for subsequent ones, also providing for increasing brackets in consideration of the auxiliary's qualifications (art. 4, first paragraph). It also provided for the possibility of increasing the compensation by a quarter for holidays related to technical consultations ordered by the civil court (art. 4, second paragraph).
There were also provisions for travel allowances and expenses (arts. 5 and 6), but no provision for updating fees.
The regulatory framework of reference also included art. 24 of Royal Decree no. 1368 of 18 December 1941 (Provisions for the implementation of the Code of Civil Procedure and transitional provisions), which, after establishing that the payment of the fee to the technical consultant should be made by decree of the judge who had appointed him, constituting an enforceable title, also provided that ‘the fee shall be commensurate with the difficulty and duration of the investigations, taking into account the consultant's participation in the hearings and the extent of the controversial matter, and in accordance with the existing rates approved by law’.
2.2.– The subsequent law no. 319 of 1980 reorganised the subject in an organic way, introducing a more articulated classification of fees, divided into ‘fixed, variable or commensurate with time’ (art. 1, second paragraph).
The aforementioned law no. 319 of 1980, in art. 2, first paragraph, has designed a system of tables for the determination of fixed and variable fees, drawn up with reference to professional tariffs, possibly relating to similar subjects, ‘tempered by the public nature of the assignment and approved by decree of the President of the Republic, on the proposal of the Minister of Grace and Justice in concert with the Minister of the Treasury’.
In the system thus defined, the law distinguished between: a) services listed in a table, remunerable according to fixed rates, or a single forecast, or according to variable rates, in that they can be modulated on the basis of pre-established brackets between a minimum and a maximum percentage value of the assignment; b) services not listed in a table, compensated ‘per vacation’, according to the time spent by the auxiliary in carrying out the assignment. The relative amounts could be doubled for services of exceptional importance, complexity and difficulty.
The criterion of payment based on working hours was, at least formally, of a residual nature. The value of the first working hour was established, in art. 4, second paragraph, as 10,000 lire, that of each subsequent working hour as 5,000 lire, with the possibility of increases based on the urgency of the task. However, art. 10 provided for the periodic triennial updating of the amounts, linked to ISTAT increases, referring to regulatory sources.
The last update was sanctioned by the Ministerial Decree of 30 May 2002, whose article 1, paragraph 1, still in force, has redetermined the amounts for the first and subsequent holidays, respectively, as 14.68 euros and 8.15 euros.
2.3.– The system described above underwent further reorganisation following the coming into force, on 1 July 2002, of Presidential Decree no. 115 of 2002.
Title VII of this Consolidated Act, entitled ‘Auxiliaries of the magistrate in criminal, civil, administrative, accounting and tax proceedings’, reclassifies fees as ‘fixed, variable and time-based’ (art. 49, paragraph 2), then dictating the regulations for their initial determination and subsequent adjustment.
Article 50, entitled ‘Measurement of fees’, states, in paragraph 1, that the amount of compensation, of any kind, is established by means of tables, approved by decree of the Minister of Justice, in agreement with the Minister of Economy and Finance, pursuant to art. 17, paragraphs 3 and 4, of the law of 23 August 1988, n. 400 (Regulation of Government activity and organisation of the Presidency of the Council of Ministers). The tables, pursuant to paragraph 2, must be drawn up with reference to existing professional rates, possibly concerning similar subjects, reconciled with the public nature of the assignment.
For time-based fees, according to the provisions of art. 50, paragraph 3, the tables identify the hourly fee, possibly distinguishing between the first hour and subsequent hours, and also establish the percentage increase for urgency, the maximum number of hours per day and any exceeding of this limit for activities carried out in the presence of the judicial authority.
Without prejudice to the right to double the fees for services of exceptional importance, complexity and difficulty (art. 52, paragraph 1), art. 54 establishes that the amount of fixed, variable and time-based fees is to be adjusted every three years, in relation to the variation ascertained by ISTAT, of the consumer price index for blue and white collar families, which occurred in the previous three-year period, by executive decree of the Ministry of Justice, in agreement with the Ministry of Economy and Finance, which has not yet been issued.
The most important innovation of the reform is the attraction of the determination of time-based fees, as well as fixed and variable fees, in the tabular system, to which the initial commensuration of the amounts is referred, as well as their subsequent updating. However, this system has not yet been adopted. In order to give it impetus, more than twenty years after its prediction, the Commission for the redetermination of the measure of fixed, variable and time fees of the magistrate's auxiliaries in criminal, civil, administrative, accounting and tax proceedings was established at the Ministry of Justice by ministerial decree of 4 December 2023.
2.4.– Article 275 of Presidential Decree no. 115 of 2002, entitled ‘Fees of the magistrate's auxiliaries’ and located in Part IX, entitled ‘Transitional provisions’, establishes that ’ [u]ntil the enactment of the regulation provided for in Article 50, the measurement of fees shall be governed by the tables’ adopted under the repealed regulation, as well as by Article 4 of Law No. 319 of 1980 (expressly preserved in its force), as amended, for the amounts, by subsequent ministerial decrees of adjustment.
Article 10 of Law No. 319 of 1980 was repealed with effect from 1 July 2002, and any adjustment of time-based fees, temporarily governed by Article 4 of the same law, is therefore subject to the mechanism outlined in Article 54 of Presidential Decree No. 115 of 2002 no. 115 of 2002 and the issuing of the executive decrees contemplated therein, which to date has never happened. This system is confirmed by the provisions of art. 296 of Presidential Decree no. 115 of 2002, which expressly states, in paragraph 1, that references to primary and secondary provisions previously in force ‘are understood to refer to the modifications of the same, even subsequent to the entry into force of the consolidated text, unless expressly excluded by the legislator’.
2.5.– The rationale for the distinction in the amount of compensation for ‘time-based’ fees between the first and subsequent sessions is not identified in the preparatory work for the laws that have succeeded each other over time.
The Court of Cassation itself, in the only distant precedent that dealt with the issue, without clarifying the meaning to be attributed to the distinction between the first and subsequent sessions, limited itself to emphasising the main purpose of containing costs (Court of Cassation, third civil section, sentence 15 March 1968, no. 847).
3.‒ Having reconstructed the regulatory framework of reference, also in a diachronic sense, we can move on to examine the questions raised.
3.1.‒ The question of constitutional legitimacy concerning art. 50, paragraph 3, of the d.P.R. n. 115 of 2002, is inadmissible due to lack of relevance.
The judge a quo is not in fact called upon to apply this provision which, although formally in force, will only regulate the matter in practice from the adoption of the ministerial regulation introducing the new tabular system, which has not yet taken place, as specified above.
Until that moment, the payment of compensation to court auxiliaries remains governed by art. 4 of law no. 319 of 1980, in conjunction with the ministerial decree of 30 May 2002, which sanctioned, as mentioned, the last adjustment of the relative amounts.
3.2.– The question relating to art. 4, second paragraph, of law no. 319 of 1980, is based on art. 3, first paragraph, of the Constitution.
3.2.1.– This Court has repeatedly had occasion to rule on the adequacy of the remuneration of court officers for their work in court proceedings.
In the scrutiny of constitutional legitimacy, the matter of fees has never been separated from the public nature of the service rendered, in consideration of the ‘functional relationship that, through the act of designation, is established between the auxiliary of the magistrate and the judicial office [and which] constitutes a munus publicum (judgments no. 102 of 2021 and no. 88 of 1970), from the useful performance of which arises a right to compensation’ (judgment no. 166 of 2022, point 2.1. of the Considered in law).
In this context, however, the need was felt to ensure a proportional relationship between the tabulated values of fees and the corresponding free-professional tariffs, so as to avoid the outcome whereby the reduction, applied due to the public nature of the institute, ended up devaluing the work carried out by the professional in charge (ruling no. 192 of 2015).
3.2.2.‒ This is how the critical aspect of the reduction of the fees of the auxiliary was gradually revealed, to such an extent that the fees due to the expert, technical consultant, interpreter and translator were sacrificed to the publicity requirements of the trial and the need to reduce costs.
What was defined, in the most ancient statements of constitutional jurisprudence, as the ‘regrettable non-fulfilment’ (ruling no. 41 of 1996, point 5 of the Consideration in law) of the public authorities responsible for updating the remuneration of auxiliaries has become, over time, a ‘characterising factor of the matter’ (ruling no. 192 of 2015, point 5.1. of the Consideration in law), entering the sphere of evaluation proper to the judgment of constitutional legitimacy in the light of the canon of reasonableness (except for the cases in which it was the administration's inaction in updating the compensation, rather than the rule providing for the compensation, that was denounced, punishable in another forum: sentence no. 89 of 2020).
Initially, this Court had limited itself, in fact, to formulating a broad wish for the legislator to introduce ‘better regulations’ (sentence no. 41 of 1996, point 7 of the Consideration in law), in noting the insufficiency of a regulation called upon to ensure the congruence of the levels of remuneration of court auxiliaries with respect to the cost of living.
Subsequently, in a legal framework of systematic omission by the competent authority of the obligation to adjust the remuneration of court officers every three years, even though this was introduced precisely to take into account the wishes formulated in previous constitutional jurisprudence by law no. 319 of 1980 (ruling no. 88 of 1970; ordinances no. 102 of 1980 and no. 69 of 1979), this Court intervened, in accordance with its powers of review, to oppose the progressive and unjustified reduction in the remuneration of court auxiliaries.
3.2.3.– It was thus considered the manifest unreasonableness of the legislative choice that, in criminal proceedings, where the defendant has been admitted to legal aid, does not exclude the reduction of one third of the amounts due to the magistrate's auxiliary, sanctioned by art. 106-bis of Presidential Decree no. 115 of 2002, in the event of the application of inadequate tariff provisions pursuant to art. 54 of the same Presidential Decree no. 115 of 2002 (ruling no. 192 of 2015).
With the subsequent sentence no. 178 of 2017, the effects of the previous ruling were extended to the case concerning the payment, by the Treasury, of the fees to the technical consultant of the party in the criminal trial.
Then, with sentence no. 166 of 2022, this Court recognised the same aspects of manifest unreasonableness in civil proceedings, and therefore declared the constitutional illegitimacy of art. 130 of the d.P.R. no. 115 of 2002, in the part in which it does not exclude the reduction by half of the amounts due to the assistant to the magistrate, as provided for in proceedings in which there is admission to state legal aid, in the event of the application of inadequate tariff provisions pursuant to art. 54 of the same Presidential Decree no. 115 of 2002.
The rationale behind these rulings is to prevent the definitive consolidation of a system that seals the absolute and definitive disproportion between the fees payable to the auxiliary and the principles of fair remuneration for his work, in the need to preserve the ‘elementary consistency in relation to variations in the cost of living’ (ruling no. 192 of 2015, point 5.1. of the Consideration of the law) of the tariff base for the remuneration of auxiliaries.
As stated verbatim in ruling no. 166 of 2022, ‘the operative part of rulings no. 192 of 2015 and no. 178 of 2017 underlies a statement of general scope that [...] transcends the contingent reason that gave rise to the scrutiny of unreasonableness [and that is] identifiable in the obsolescence of the tabular amounts’ (point 3.2. of the Considered in law).
3.2.4.– The principles affirmed, transposed from the tabular system, within which the aforementioned guideline was formed, to the matter of ‘time’ remunerated services, lead to the same affirmation of manifest unreasonableness of the censured art. 4 of law no. 319 of 1980, in the part where, in the second paragraph, it imposes a significant diversification of remuneration linked to the succession of holidays, which are already poorly paid.
This happened despite the fact that the preparatory work on art. 4 of law no. 319 of 1980, now dated, revealed the legislator's desire to prepare a more effective remuneration mechanism for court auxiliaries, in view of the recognised insufficiency of the previous one, which was itself anchored ’ to the so-called vacations maintained within limits that today [in the year 1980] appear merely laughable and to the fees, which are also limited to an almost symbolic measure’ (Senate of the Republic, 8th legislature, 131st public session, stenographic report 15 May 1980, p. 6988).
The ‘significant difference’ between the first instalment and the subsequent ones - whatever the original basis for them - accentuates, in the described context, the absolute disproportion between the amount of compensation to be paid to the assistant and the value of his services.
This absolute disproportion ends up being manifestly unreasonable with respect to the legitimate aim of containing the costs of the process, as it neglects the primary requirement – which, on the other hand, characterised the legislation in question until law no. 1426 of 1956, which still distinguished between ‘time-based’ fees based on the qualifications of the magistrate's assistant - for a service of adequate quality with respect to the importance of the munus publicum conferred.
3.2.5.– The institution of "vacazione", in reality, is no longer regulated in the revised discipline of time-based fees, now, as we have seen, entirely entrusted, together with that of fixed and variable fees, to the tabular provision.
The establishment of the aforementioned Commission by the Ministry of Justice on 4 December 2023 to redefine the amount of fixed, variable and time-based fees for magistrate's assistants in criminal, civil, administrative, accounting and tax proceedings, and the pending nature of the Commission's work, provide an opportunity to reflect on the usefulness of a distinction, within the reorganised fee payment tables, ‘between the first and subsequent hours’ (art. 50, paragraph 3, d.P.R. n. 115 of 2002), which, considered by the legislator as ‘only possible’, risks reproducing, in the case of a lack of timely updating of the tabular values to the changes in the cost of living, the deviations in application criticised here.
4.– Art. 4, second paragraph, of law no. 319 of 1980, must therefore be declared constitutionally illegitimate, due to contrast with art. 3, first paragraph, of the Constitution, in the part in which, for subsequent sessions, it establishes the payment of a lower fee than that established for the first session.
5.– The other questions raised remain absorbed.
For these reasons
THE CONSTITUTIONAL COURT
1) declares the constitutional illegitimacy of art. 4, second paragraph, of law no. 319 of 8 July 1980 (Compensation due to experts, technical consultants, interpreters and translators for operations carried out at the request of the judicial authority) in the part in which, for sessions subsequent to the first, it provides for the payment of a fee lower than that established for the first session;
2) declares that the question of constitutional legitimacy of art. 50, paragraph 3, of Presidential Decree No. 115 of 2002, raised, with reference to Articles 3 and 111 of the Constitution, by the Ordinary Court of Florence, First Criminal Section, sitting alone, with the order indicated in the epigraph.
So decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 11 December 2024.
Signed:
Giovanni AMOROSO, President
Maria Rosaria SAN GIORGIO, Editor
Roberto MILANA, Director of the Registry
Filed in the Registry on 10 February 2025
The Director of the Registry
Signed: Roberto MILANA